Western District of Pennsylvania Accurately Stated the Modern-Day Relevance of Jacobson v. Massachusetts

I am working on a long article on the 1st, 2nd, and 14th Amendment rights during the pandemic. Stay tuned.

|The Volokh Conspiracy |

Over the past few months, I have written several blog posts about how the courts have approached the 1st, 2nd, and 14th Amendments during the pandemic. Those posts will serve as the basis for a lengthy article. I should be able to post it to SSRN by the end of this month. It is comprehensive.

For now, I will flag a portion of Judge Stickman's decision in the Pennsylvania lockdown case. (Eugene flagged it earlier). He accurately stated the place Jacobson occupies in our constitutional canon.

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.

In Bayley's Campground, Inc. v. Mills, _ F. Supp. 3d _, 2020 WL 2791797 (D. Me. May 29, 2020), a district court examined whether the governor of Maine's emergency order requiring, inter alia, visitors from out of state to self-quarantine, was constitutional. As here, before proceeding to its analysis of the substantive legal issues, the court examined how it should weigh the issues—according to a very deferential analysis purportedly consistent with Jacobson, as advocated by the governor, or under "regular" levels of scrutiny advocated by the plaintiffs. The district court examined Jacobson and, specifically, whether it warranted the application of a looser, more deferential, standard than the "regular" tiered scrutiny used on constitutional challenges. It observed: "[i]n the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights." Id. at *8 (citing Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992)). See also Planned Parenthood, 505 U.S. at 857 (citing Jacobson, 197 U.S. 24-30) (affirming that "a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims."). The district court declined to apply a standard below those of the established tiered levels of scrutiny. It stated:

[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided. Bayley's Campground, at *8.

Judge Strickman is exactly right. Jacobson, on its own terms, does not apply to these sorts of COVID-19 cases. Now that we have moved from the early days of the pandemic, I hope courts can approach these unprecedented lockdown measures with more consideration.

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  1. Yes, treating the DISSENT in Bayley’s Campground as effectively overruling controlling law is exactly what a district court should do. Josh, is there any doubt on earth that you would call this “judicial activism” if it reached a result you disliked?

    1. Meant to say Calvary Chapel, not Bayley’s Campground.

    2. Yep. There have been coronavirus cases that have gone up to the Supreme Court on its shadow docket. If Jacobson was no longer good law, the Court could have told us. It isn’t the job of District Courts to overturn it.

  2. “[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties,”

    This is kind of an unfortunate sentence.

  3. It seems to me that people are missing the constitutional point here. We can argue about what emergency powers that the state governments may have but the the issue here is what powers the governors have. Having the governors rule by decree for months on end violates the guarantee clause. Essentially it is an absolute monarchy which is definitely not a republican form of government. In some cases (e.g. CA) the governor, if he tried could get the legislature to go along. In others (e.g. MI), no way.

    1. Your contention is that a governor’s public health order in the midst of a pandemic is tantamount to a monarchy—notwithstanding that the arguable authority for that public health order necessarily expires once the justification ends, and voters are free to vote for other candidates in the next election? That’s risible.

      1. Your contention is that the Guaranty Clause is meaningless?

        1. My contention is that (1) it doesn’t apply here
          and (2) regardless, the plaintiffs in this case didn’t raise a guarantee clause challenge.

      2. Tell me more about this mystical time when the COVID-19 justifications end? Sounds like a delightful place.

        1. If there’s not a pandemic, Jacobson is inapposite by its own terms.

      3. When does the “Justification” end? When the emergency ends?

        We have emergencies which have been ongoing since 2001… That’s a heck of a long time for the “justification” to keep going

      4. Risable you say? How about what King Cuomo is doing in NY. He decreed that patrons at a bar must be seated AND order food.

        When some bar owners mock him with $1 menus with the first letter of each item spelling out “FUCK CUOMO”, he sends in the State Liquor Authority to “inspect” and pull their license.

        I am sure those owners find this risable.

        1. Then why don’t they raise a guarantee clause challenge? Then we can all find out whether “state executive orders the plaintiff doesn’t like” are the same thing as “the United States failing to guarantee a republican form of government.”

          1. The food thing was not an executive order. It was a decree. And when the King was mocked, he used the power of the state to punish the mockers.

            Rule of law? Anyone?

            1. Well, that would be a First Amendment issue, not a guarantee clause issue.

            2. The food thing was not an executive order. It was a decree.

              What distinction do you see here?

    2. Neither ME nor MA has a recall or impeachment provision in it’s state constitution.

      If it did, *both* governors would be facing a serious Republican challenge to their authority.

      1. What’s your thinking when you lie about something like this? You do know that state constitutions are available online, right?

        1. He doesn’t even know, despite ostensibly living in MA, that the MA governor is near the top of the list of most popular governors for their handling of coronavirus.

  4. The issue I have is that General Mills’ CONTINUED ban on Massachusetts is every bit as bigoted as her saying “No Niggers” — it’s not the other 48 states but Massachusetts and she no longer has a scientific basis for her bigotry.

    Bailey’s Campground was heard by the 1st Circuit last Wednesday — as to the District Judge, while Trump nominated hum (WHY?) this is a man who has never been out of Maine — born there, undergrad there, law school there — can we say “parochial”?

    1. “Flatlander”, “Masshole” — there are equally offensive racist slurs.

  5. Although Chief Justice Roberts’ opinion in the stay denial order in South Bay Pentacostal Church v. Newsome was a concurrence and is not binding on the district court, it does tend to suggest that the death of of Jacobson v. Massachussetts may have been greatly exaggerated.

  6. Even if Jacobson v. Massachessetts hadn’t continued to get regular citation in various Supreme Court opinions as continuing controlling authority, alower court is not free to ignore a precedent because it thinks more recent cases have undermined it. As the Supreme Court put it, “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil v. Khan, 522 U.S. 3 (1997).

    Of course, this blog is not so bound.

    1. But there is no constitutional command binding lower courts to irrational Supreme Court precedent.

      If you doubt my contention, please cite the constitutional provision that obligates lower courts to follow Supreme court precedent.

      1. You realize that the Constitution isn’t the only source of law, right? The nature of the judiciary is that lower courts are required to follow binding precedent, whether they agree with it or not.

        1. Shoot Cherno, he’s wrong even on his own terms:

          Art. III, s. 1: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

          1. No, I am not wrong.

            You forget what follows “shall be vested in one Supreme Court,” “and in such inferior courts as the Congress may from time to time ordain and establish.”

            Thus, the judicial power is vested in both the Supreme Court and in the inferior courts.

            1. What could inferior mean in this context, except bound by the superior?

              1. Language matters.

                The use of the conjunction “and” conveys the meaning that the judicial power of the US is also vested in lower courts should the Congress establish them.

                That you construe “inferior courts” to mean that such courts are bound by SCOTUS precedent, even if such precedent upholds principles like slavery, is your reading of the clause; it is not a required inference.

                1. Mike, I want you to show me one decision where a district court has decided it can ignore binding precedent and has not gotten reversed on appeal. Because I can show you about a million where one HAS gotten reversed for precisely that reason. It’s not called “binding precedent” because it’s a suggestion to the lower court.

      2. Sure. Article III Section 2. “the Supreme Court shall have appellate jurisdiction…”

        Appellate jurisdiction, in 1789 as today, meant the authority to issue decisions acting as binding precedent on lower courts, like the British House of Lords.

        1. Except that the American colonies, after making war against, and seceding from, the British Empire, did not expressly embrace the proposition as it is not set forth in either the Unanimous Declaration nor in the federal constitution.

          1. You think the American Revolution resulted in secretly adopting an alternate version of what appellate jurisdiction means?

            1. Appellate jurisdiction does not mean that lower courts must adhere to precedent incompatible with founding principles.

              You are reaching to justify the proposition that lower courts must always dutifully follow the edicts of an appellate court higher up the judicial pyramid.

              1. You’re the one reaching. Adding substantive exceptions to procedural systems is usually a sign of outcome-oriented thinking.

                In this case, you now have an exception you can drive a truck through. Maybe judge Sarcastro thinks the founding principle is equality and that precedent incompatible with socialism is to be ignored.

                Or that the 14th Amendment is what really sets up the judicial requirements, and that the principle of government of the people, by the people, for the people means voting restrictions get strict scrutiny.

                Not everyone is Libertymike. You’ve just added idiosyncratic views and subjectivity to our legal system. This is anarchy.

                1. Adding idiosyncratic views and subjectivity to our legal systems?

                  Do you mean things like contending that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire?”

                  From the mind of a grade A moron.

                  1. Not to our legal system, to the procedural backbone of our legal system.

                    Not sure why you’re quoting Lochner at me. Do you think it’s good law?

                    1. Just adverting to the fact that we have a treasure trove of jurists who have blessed us with their idiosyncratic views and subjectivity.

                    2. That is not adding substantive exceptions to procedural systems, which is what you are doing.

                      Also, that’s the Supreme Court’s job. It is not yours. Nor inferior courts’.

        2. “Appellate jurisdiction, in 1789 as today, meant the authority to issue decisions acting as binding precedent on lower courts…”

          That’s not what appellate jurisdiction means. It means the ability to overrule decisions of a lower court in a particular case. It doesn’t necessarily include the ability to bind the court in future cases.

  7. The issue of precedent aside, lockdowns are by their very nature tyranny. You can’t lock down an entire society. Someone has to ensure the lights come on and the food goes on the shelves and the rest of the things needed for civilization. So no lockdown is ever complete. It must necessarily exempt “essential services”. Essential is a completely subjective concept. What is essential to one person is a luxury or a vice to another. All of these lockdowns immediately denigrated into arbitrary rule by decree of the whim of the governors. If your governor likes golf, golf courses are essential. If the governor likes to garden, home depot stays open and so forth. You cannot squire a lock lasting more than a day or two with any reasonable concept of the rule of law, due process or respect for civil rights. If the 14th Amendment doesn’t prevent this sort of arbitrary tyranny, it is hard to see how it protects the public from any sort of tyranny.

    Beyond that, at a most basic level restrictions on fundamental rights must be narrowly tailored to a compelling government interest. There is nothing narrowly tailored about the blunt instrument of a lock down. It takes the tradition public health powers to quarantine the sick or those reasonably believed to be sick and turns them into a general right to lock the entire society in house arrest. And do not kid yourself into thinking it is anything but house arrest. People in states like Michigan have been pulled over and ticketed for being out of their homes without a lawful purpose. That is house arrest. And it has been done to everyone without any regard to due process or specific circumstances requiring it. Lockdowns are about as far from being narrowly tailored as any government action could be.

    Beyond that they are utterly arbitrary. Governors unilaterally have set benchmarks for lifting these things. Why is allowing restaurants to serve indoors fine if there are say 15 new cases a day but not if there are 16? There isn’t any answer to that question other than a governor or someone in power decided it was so. There is nothing scientific or objective about it. Science doesn’t tell you anything about if you should allow something. It can at best tell you what might happen if you do. Whether that consequence is a price worth paying is an entirely subjective decision.

    The lockdowns have made the public health powers into a trap door out of which the 14th Amendment and the entire Bill of Rights as applied to the states falls out of the bottom of the Constitution. If the courts are somehow able to talk themselves into allowing the lockdowns to stand, then they have rendered the entire Bill of Rights meaningless. If the Bill of Rights can be suspended in such an arbitrary and universal way in the name of a relatively mild world pandemic, it can be suspended for any other reason the government dreams up that happens to appeal to judges for whatever reason.

    1. This is just one giant slippery slope argument. The fact that a line is drawn somewhere doesn’t mean that all line-drawing is arbitrary.

      1. It wasn’t slippery slope at all. And I am not saying that the line must be arbitrary. I am saying that some lines are necessarily arbitrary. There is no way to objectively define why a particular level of cases or deaths is acceptable and what is not. It is a value decision. And you don’t let government officials make such value decisions without any due process or accountability.

        I like it when people respond to a post. That is the point of a message board. But it is clear you have no idea what I was saying. And I am not really sure how to make it any more clear. So, stop wasting my time. I am dumbfounded how you think I am making a slippery slope argument here. The point is that this is arbitrary and in no way narrowly tailored to anything other than the government’s subjective desires. That has nothing to do with the slippery slop. I don’t know how I can make it any more clear.

        1. “If the 14th Amendment doesn’t prevent this sort of arbitrary tyranny, it is hard to see how it protects the public from any sort of tyranny.”

          ” The lockdowns have made the public health powers into a trap door out of which the 14th Amendment and the entire Bill of Rights as applied to the states falls out of the bottom of the Constitution. If the courts are somehow able to talk themselves into allowing the lockdowns to stand, then they have rendered the entire Bill of Rights meaningless. If the Bill of Rights can be suspended in such an arbitrary and universal way in the name of a relatively mild world pandemic, it can be suspended for any other reason the government dreams up that happens to appeal to judges for whatever reason.”

          Each of these is a slippery slope argument. You’re generalizing from a narrow case of what you believe to be tyranny to a broader, lawless world. And you’re contending that the consequences of the judiciary failing to act in the way you believe it should is this sort of despotic regime. How you can argue that your overarching point doesn’t depend on a slippery slope is beyond me.

          1. NO they are not. They are not saying we are going to fall down some slippery slope. If it were a slippery slope argument, my argument would be that this is bad because it will lead to other worse things. And that is not what I am saying. I am saying that this is the worst thing. A law could not be more broad, arbitrary or less narrowly tailored to a compelling government interest than this one. That is not a slippery slope argument.

            I don’t know how else to explain it to you. Even if it were, saying it is isn’t disproving the argument. You are just wasting my time and showing that my teaching skills whatever they are, are not up to the considerable challenge of teaching you.

            1. I apologize for giving you credit for making an argument founded on a logical fallacy, rather than an argument founded on hyperventilation and a misreading of the law.

              1. Cherno I thought you had a point, but alas, you do not.

                He’s saying the lockdown power is unconstitutional, full stop. That’s not a slope of any kind.

                Are you just being a contrarian dick for the sake of it? I’m ok with that, but do better.

                1. I understood his argument, based on his quotes above, to be that if the courts uphold lockdowns, they will uphold any other exercise of executive power. That is the definition of a slippery slope: any other exercise of tyranny is possible if this exercise of tyranny stands. But hey, let’s take his argument at your characterization of it.

                  First of all, he’s misunderstanding the legal standard. Why would a court apply strict scrutiny to a lockdown order when Jacobson provides the rule? So the entire premise that the lockdown order isn’t narrowly tailored to achieve a compelling government interest is beside the point.

                  Second, to the extent that he contends that the executive is drawing an arbitrary line by limiting dining if there are 15 new cases but not 16, or exempting some businesses as essential but not others, that is exactly the type of line-drawing that one would expect in an emergency situation. You can certainly quibble with where the lines are drawn, but the fact that they’re being drawn is not itself evidence of some sort of monstrous tyranny.

          2. You have a nasty habit of distorting the arguments of others.

            John is not making a slippery slope argument, your asseveration to the contrary notwithstanding.

            In the second paragraph of his 9:13 AM post, John articulates the jurisprudentially created balancing test (a power not conferred upon the federal courts in the constitution) in which the state must justify its liberty violations upon the basis that it has a compelling interest in the matter and that the means it has adopted are narrowly tailored to accomplish its objective. John’s point that a lockdown of society is, per se, not narrowly tailored is hardly a slipper slope argument.

            Nevertheless, you falsely characterize his contention as slippery slope. In unequivocal terms, he correctly pronounces the lockdowns as tyrannical, per se.

    2. Drafting a citizen into the army and ordering him to likely death in battle is an even greater tyranny, yet a tyranny the state also has every right to do. And government can declare war for any reason it wants.

      1. Judicial oversight here does include whether a pandemic actually exists, just as in reviewing a martial law case the courts independently determine if invasion is imminent. You may disagree, but the courts have determined the pandemic threat is real.

        1. This is exactly what some of the commenters above are missing. The courts don’t have to take the government’s word that a pandemic exists. If the facts back that up, Jacobson applies. If they don’t, we can move along to whatever sort of analysis might ordinarily apply to the challenged action. The government can’t just make up a rationale that flies in the face of the facts on the ground to bring itself within Jacobson’s scope.

          1. That first part is certainly true. Most of the lawsuits, if not all, have failed to actually challenge the factual basis for the decrees. I believe the CA health clubs suit does that, for the first time.

            Nevertheless, I still think John, above, is right when he says that a full lockdown in the style we’ve seen is per se unconstitutional. You can isolate and quarantine people, buildings, even whole towns, but you cannot lock down everyone short of a declaration of martial law.

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